You’ve been injured in a car accident or by a medical mistake. How long can you wait before starting a lawsuit? It depends upon the applicable statute of limitations.
Lawsuit Statute of Limitations
The statute of limitations is a legal doctrine that places time limits upon when a suit can be brought. Different states have different limitations periods. In Pennsylvania and New Jersey, the statute of limitations for personal injury claims is generally two years. In other words, if you have been injured in a car accident or by the actions of a physician, you must bring suit before the two-year anniversary of the date on which you were injured; otherwise, your right to pursue a claim may be permanently barred. In some other states, the limitations period for such claims may be different. The rule is designed to prevent the filing of stale claims and to ensure that claims are asserted while physical evidence and recollections of witnesses are still available. You should always check with a lawyer to see which statute of limitations applies to your case.
The Discovery Rule – Exceptions to Lawsuit Statute of Limitations
If more than two years have passed since you were injured, are you definitely prevented from suing? Not necessarily. In some limited circumstances, Pennsylvania courts will apply what is called “the discovery rule” which permits an injured person to institute a civil suit so long as the case is commenced before the two-year anniversary of the date on which the person knew or should have known that he or she was injured. Usually, a claimant knows that s/he has been injured at about the same time that the wrongdoer commits the careless act in question. For instance, if you have been injured in a car crash, you likely knew that you were injured at the moment that you were involved in the collision. Likewise, if you underwent gall bladder surgery and left the operating room missing a limb, you would certainly know that you had been injured. In both cases, you would have to commence your lawsuit before the two-year anniversary of the date of injury.
However, in some limited circumstances you might not realize that another person injured you until after the limitations period has expired. For instance, if your physician failed to timely diagnose a disease such as cancer, you might not realize that you were injured until the diagnosis is eventually made, months or years after the fact. Likewise, if you undergo an operation and the surgeon carelessly leaves a sponge inside your abdomen, you might not know about it until years later after your unexplained stomach aches prompt someone to perform a CT scan. In such cases, Pennsylvania or New Jersey Courts may apply a doctrine known as “the Discovery Rule.” If the Court applies the Rule, the two-year period runs from the date you knew or should have known that your injury was caused by someone else. Since you would have no reason to know you had been injured until you were diagnosed with cancer, or until that sponge was discovered, the Court may recognize that it is unfair to apply a rigid two-year statute of limitations rule under such circumstances. The proverbial clock will start ticking on the date that you first learned you had been injured. This is an exception to the general rule.
Malpractice Lawsuits in Pennsylvania
Importantly, in Pennsylvania, the two-year clock begins running when you learn you have been injured, not when you realize the injury was caused by malpractice. In Pennsylvania, once you learn that you have been injured by someone else’s conduct, irrespective of whether you know that the conduct was careless or negligent, the limitations period begins to run. Essentially, the Courts are saying that, once you know you have been injured by someone else’s conduct, the burden shifts to you to exercise reasonable diligence to investigate your claim.
Different States – Different Rules
You should note that different states have different discovery rules. For instance, in New York State, the discovery rule is limited to cases in which cancer is not timely diagnosed or in which foreign bodies are left inside a patient during surgery. In Delaware, the discovery rule will extend the statute of limitations to a maximum of three years from the negligent act, but only if the wrongdoer’s negligence could not have been discovered within two years of the date of injury. If this sounds confusing, it is. It is also another reason that you should not waste time investigating if you have been injured. You should seek the advice of an attorney who can counsel you with respect to the applicable statute of limitations and who can otherwise advise you with respect to the merits of your claim.
Exceptions to Statute of Limitations
There are other important exceptions. First, when a minor (a person under the age of 18) is the victim of negligence in Pennsylvania, the two-year statute of limitations is effectively put on hold (“tolled”) until the child’s 18th birthday, effectively providing that suit must be brought before the child’s 20th birthday. Alternatively, suit can also be brought on the child’s behalf by the parents or natural guardians any time before the child attains age 18. The rule is designed to protect the rights of children whose parents failed to take action on their behalf. Different states have different rules in this regard. For instance, New Jersey tolls the statute of limitations in cases involving minors until the child reaches 18 years except where the negligent act occurs at the time of birth. In such cases, suit must be brought before the child’s 13th birthday. Arguably, there is no bona fide reason to treat birth cases differently than any other cases, and the rule appears to have been designed simply to protect hospitals and obstetricians from the possibility of large birth injury verdicts.
Death and Lawsuits
Death cases pose yet another interesting wrinkle. The general rule is that, if a person dies as a result of the negligent act of another, suit must be brought by the Estate of the victim before the two-year anniversary of the date of injury. For example, if a person is injured in an automobile accident on January 1, 2020, but dies January 10, 2020, suit must be instituted by the Estate of the deceased before January 1, 2022. However, the rule in medical negligence cases in Pennsylvania is slightly different. Thanks to sloppily written “tort reform” legislation, Wrongful Death actions in medical negligence cases must be brought before the two-year anniversary of the death of the decedent, irrespective of how much time elapses between the injury and death. Thus, if a person is injured in Pennsylvania by medical negligence on January 1, 2020, but does not die until January 10, 2020, suit is timely so long as it is instituted before January 10, 2022. Even if death does not follow the injury for years, as with some cancer cases, this quirk in Pennsylvania law permits an action for wrongful death to be brought within two years of the date of death, not two years from the date the cancer was diagnosed. This anomaly applies in Pennsylvania only to medical negligence cases because the legislature, reportedly thinking it was placing a limit on these cases, inadvertently extended the statute of limitations. This quirk is a result of an interpretation of the law by the Pennsylvania Supreme Court, and it is certainly conceivable that a different Court at a different time might reach a different result.
Sexual Abuse and Lawsuits
In cases involving the sexual abuse of minors, the state legislatures in Pennsylvania and New Jersey have extended the statute of limitations. Recognizing that victims of childhood sexual abuse may be reluctant to come forward until they are well into adulthood, Pennsylvania extended the statute of limitations in such cases until the victim’s 30th birthday. Effective December of 2021, victims of childhood sexual abuse in New Jersey will have until age 55 or seven years from the date on which the victim becomes aware of the injury caused by the abuse to file a lawsuit. Where child sexual abuse occurs in multiple states, multiple statutes of limitation may apply. These extended statutes of limitations apply only to childhood sexual abuse. Adult sexual abuse is governed, generally,. by the two-year statute of limitations.
The statute of limitations is considered a waivable defense. In other words, it is available to the Defendant, but the Defendant must specifically assert it. If the Defendant does not invoke the statute of limitations in its response to the Complaint, this defense is deemed waived. Unless the defense attorney is asleep or incompetent, you can bet that the defense will be asserted if you bring a lawsuit more than two years after-the-fact. Sometimes a Defendant may agree ahead of time to waive the statute of limitations. This can happen when the parties are attempting to resolve the matter without litigation during the two-year period. In such a case, the Defendant can agree to waive the statute of limitations for a set period of time in order to afford the parties more time to negotiate a settlement. Short of a knowing agreement or sloppy lawyering by the Defendant, the statute of limitations will provide a complete and permanent bar to any untimely claim.
Contact an Attorney Sooner, Rather than Later
The defense of the statute of limitations is not necessarily fair. It can terminate otherwise legitimate claims based the expiration of an arbitrary time limit. Injured people with valid claims can be put out of Court simply because they waited too long to reach out for help to an attorney. Statutes of limitations are unforgiving, and you should not risk running afoul of them. Accordingly, if you intend to pursue a lawsuit, you should contact an attorney sooner rather than later.
Beyond the statute of limitations, there may be other restrictions and deadlines applicable to your case. Complex litigation, such as medical malpractice cases, often involves a great deal of work before the initiation of suit. If you wait until the 11th hour to contact an attorney, your attorney may decline your case simply because he or she does not have sufficient time to investigate it before the limitations period lapses.
The lawyers at McLaughlin & Lauricella, P.C. have experience with personal injury cases involving automobile crashes, medical malpractice, trucking accidents, and sexual abuse. If you think you have been injured as a result of the conduct of another person, contact McLaughlin & Lauricella by email for a free consultation or call us at 1-855-633-6251.